On the Constitution, Beware the Word “Clearly”

On January 20, the Los Angeles Timesran an op-ed arguing that national health care mandates were constitutional. The article claimed this was true both under modern Supreme Court interpretations and under the Constitution’s original meaning.

I do not share the writer’s confidence that national health care mandates are constitutional even under the modern Supreme Court’s altered version of the Constitution — but I recognize that legal scholars differ on this question. However, the claim that the Founding Fathers would have thought the Constitution allows Congress to impose health care mandates is little short of absurd.

What really floored me was seeing that this claim was advanced by Akhil Reed Amar, a constitutional scholar I very much admire. Apparently, Professor Amar has been seriously misreading the historical record.

I know that record well: Researching and writing about it has taken much of my professional time for many years. Here are some of Professor Amar’s points, and my rejoinders:

Amar:“It’s true that the Constitution grants Congress authority to legislate only in the areas enumerated in the document itself. Other matters are left to the states under the 10th Amendment. But if enumerated power does exist, the 10th Amendment objection disappears.”

Natelson: The Tenth Amendment (and even more so the Ninth) was adopted to signal that no enumerated power should be stretched too much. Otherwise, federalism would be subverted. An important legal rule in the Founding Era (as today) is that documents should be construed to avoid a situation in which much of the language becomes useless surplusage. Stretching any enumerated power too far would render useless both the other enumerated powers and the Ninth and Tenth Amendments.

Amar:“Under the interstate commerce clause of Article I, activities whose effects are confined within a given state are to be regulated by that state government, or simply left unregulated. But the federal government is specifically empowered to address matters that have significant spillover effects across state lines or international borders.”

Natelson: The interstate commerce clause gave Congress power to regulate interstate commerce — not any “matters that have significant spillover effects across state lines.” The Constitutional Convention rejected the wording of the Virginia Plan, which arguably would have let the federal government regulate any activity with interstate spillover. Instead, the delegates limited Congress to enumerated powers, such as the power over interstate commerce. The Bill of Rights constricted those powers further.

In other words, the Founders made the deliberate decision to leave many activities with spillover effects to the states. They also included a qualified state power to deal with spillover effects by interstate compact. The Founders knew that through “sophistry” (their word) one can always claim a spillover effect, so giving the federal government power over anything with significant spillover effects would result in no real constraints on the federal government at all.

Amar:“[T]he founders authorized Congress to act even in situations that did not involve explicit markets, so long as the activities truly crossed state lines or national borders.”

Natelson: Under the Commerce Clause, Congress received the power to regulate “Commerce.” Several scholars, including I, have published research showing what the Constitution meant by this word. Based on over two thousand uses of “commerce” in Founding-Era records, we know that the word meant mercantile trade and certain closely-related activities, such as marine insurance and navigation, traditionally governed by the rules pertaining to merchants. “Commerce” did not include other economic or non-economic activities.

Amar: “In line with this broad understanding, George Washington signed a law preventing Americans from committing even non-economic crimes on Indian lands because such activities did indeed involve ‘commerce . . . with the Indian tribes.’”

Natelson: The bill referred was the Indian Intercourse Act, and it was not passed until 1790 — after all the original thirteen states had ratified the Constitution. What Congress did after all the state ratifying conventions had adjourned is not very good evidence of what those conventions understood earlier — especially since political alliances already had shifted.

More importantly, though, Professor Amar has his history wrong: The Indian Intercourse Act was not passed under the Commerce Power. It was adopted to carry out three treaties with Indian tribes — the “Hopewell” treaties of 1785 and 1786. In the Founding Era (as today), it was understood that Congress could act outside its other enumerated powers to effectuate a treaty. (That’s one reason the Bill of Rights was adopted.) Last I looked, no one claimed that Obamacare was required by a treaty.

Natelson: Yes, but as pointed out above, the Founders’ Constitution did not give Congress power to regulate everything “economic in nature,” even if it had interstate effects.

This was a subject of detailed discussion during the ratification debates. To answer claims that the federal government would be too powerful, the Constitution’s advocates provided voters with lists of specific activities that would remain under exclusive state control. Among these were business regulation (other than foreign, interstate, and Indian commerce) and social services. The Ninth and Tenth Amendments were adopted largely to cement this understanding.

Amar: “The founders’ Constitution also gave Congress sweeping power to impose all sorts of taxes . . . [A]fter independence, the founders created a representative Congress with explicit authority to tax Americans up, down and sideways.”

Natelson: The Founders wanted Congress to have broad taxing power because massive amounts of revenue would be necessary in time of war. In peace, they expected excises and imposts to be sufficient. This was because the Constitution would allow Congress to spend tax revenue only for enumerated purposes. After the ratification, big-government advocate Alexander Hamilton invented the idea that Congress could spend anything it wanted for the “general Welfare,” but other Founders did not accept this idiosyncratic theory.

Amar:“During the Progressive era, Americans amended the Constitution to underscore the broad power of Congress to tax, and indeed to tax for redistributive purposes. This is the plain meaning and original intent of the 16th Amendment.”

Natelson: Legally, all the 16th Amendment did was drop the requirement that if Congress chose to enact an income tax, the tax be apportioned among the states. The 16th Amendment did not grant any further power to Congress. It increased potential federal revenue, but only to do the sorts of things Congress always had done.

Amar:“The reason for this sweeping power to tax was clearly set out in Article I: Taxes would “pay the debts and provide for the common defense and general welfare.”

Amar: “One special founding-era concern was national security. Taxes would be needed to fund national defense. Today, national health does indeed affect America’s ultimate national strength and national defense posture.”

Natelson: This is the classic argument that “proves too much.” As James Madison pointed out, a constitutional argument is “triable by its consequences.” Here, the consequences would be essentially unlimited congressional power, since almost any significant activity can be linked to national security. Because it is incontrovertible that unlimited congressional power is not what the Founders’ Constitution granted, the argument fails.

The argument is also a scary one, because historically “national security” often has been used to excuse the suspension of individual rights.

Amar:“This broad view of national defense is precisely the one endorsed by President Washington in 1791 when he signed a bill creating a national bank. . . .[S]upporters of the bank understood that it would exist in the service of national defense, helping to pay soldiers . . . to manage wartime finances. In 1819, the Supreme Court unanimously upheld the bank as plausibly connected to national security.”

Natelson: Beside the fact that this argument also “proves too much” and relies on evidence that arguably is too late, it also is historically misleading. The 1791 bank debate was about Congress’ power to enact laws “necessary and proper for carrying into Execution” its other powers. The Constitution’s advocates were clear that this Necessary and Proper Clause granted no additional power, but clarified that the Constitution incorporated the common law doctrine of “incidental authority” — a position consistent with how documents were written at the time.

Under Founding-Era law, an “incidental” power was an implied power that was (a) less important than an express power, and (b) customarily or reasonably necessarily (not “plausibly”) used as a way to carry out the principal power. The bank debate was about whether a national bank fit these agreed standards.

No one thought the Necessary and Proper Clause gave Congress authority to control a sixth of the American economy in peacetime. “Obamacare” is, in fact, precisely the kind of measure that the Supreme Court said (in the very case Amar cites) it would strike down.

Amar:“After the Civil War, Americans amended the Constitution to give Congress another explicit authority relevant in the healthcare debate: Section 5 of the 14th Amendment charges Congress with protecting basic human rights. Healthcare is such a right — or at least Congress is constitutionally allowed to decide it is.”

Natelson: No, it is not. See the Supreme Court’s decision in City of Boerne v. Flores (1997).

Amar: “True, the plan imposes mandates on individuals. So do jury service laws, draft registration laws and automobile insurance laws.”

Natelson: Here we get into modern constitutional interpretation. The key question – now much disputed – is whether Congress has authority under Supreme Court misinterpretations of the Commerce Power to mandate that citizens (subjects?) purchase health insurance.

The mandates Professor Amar cites are simply besides the point. Jury service is authorized by the original understanding of several provisions in the Constitution. The military draft is similarly authorized by the Constitution’s grant to Congress of power to “raise and support Armies” (including then-customary incidental powers). Automobile insurance laws are imposed by the states, not the federal government – and unlike the federal government, the states are not limited to enumerated powers.

In addition, there are important privacy (“Substantive Due Process”) concerns implicated by health care mandates that are not implicated by automobile insurance laws.

Amar: “Maybe Obamacare is good policy; maybe not. But it is clearly constitutional.”

Natelson: As any competent constitutional scholar will tell you: “Beware the word ‘clearly!’” When a judge or a lawyer claims that a disputed law is “clearly” within a constitutional power, it often means he suspects it’s probably not — but for some reason he’s arguing that it is.

Professor Natelson teaches Constitutional Law, Legal History, Advanced Constitutional Law, Remedies, and a seminar on the First Amendment at the University of Montana School of Law. He is a recognized national expert on the framing and adoption of the United States Constitution. His opinions are his own, and should not be attributed to any other person or institution.